There’s something awfully fishy about a government enacting
legislation that gives itself the right to sue a few specific
corporations.I’m speaking, of course, of British Columbia’s
Tobacco
Damages and Health Care Costs Recovery Act (TDHCCRA),recently
declared constitutional by the Supreme Court of Canada.

Right
off the bat,
one has to wonder why there was any necessity to enact legislation at
all.Didn’t the B.C. government have the
right to
sue tobacco manufacturers without a special act of the legislature?

Of course it did.Any
government can assert a claim through the courts against any
corporation.But not every lawsuit results
in a win.B.C. didn’t want to take any
chances.Its
goal was to siphon millions of dollars out of tobacco company coffers,
just as
it had seen fifty U.S.
states do in 1998.This meant it had to
stack the deck to guarantee success.

That was, after
all, exactly what its American forerunners
had done.In an incautious moment, the
president of the Maryland
state senate even admitted to a newspaper:“We changed centuries of precedent in order to assure a
win in this
case.”

So B.C. took an
axe to several time-honoured principles of
common law.The TDHCCRA created a cause
of action where none had existed before.It requires the court to presume causation, instead of applying
old-fashioned standards of proof.It
dispenses
with the need for any connection between alleged victims and alleged
perpetrators of harm.It blocks the
defendants’ right to compel the production of evidence that might help
them
rebut the statutory presumptions.It
imposes liability retroactively without any limits.It revives actions that were previously
statute-barred.It imposes liability on
foreign entities who might never have had any connection with British Columbia.

The tobacco
companies challenged the constitutionality of
the law on three main grounds:first,
extraterritoriality; second, that it violated judicial independence by
dictating
to judges their verdict in advance; and third, that it violated the
rule of law,
an unwritten but legally recognized part of Canada’s constitution.

The Supreme Court
of Canada brushed aside every objection
and declared the Act constitutional.Its
cavalier dismissal of the tobacco companies’ arguments made barely a
ripple in
the daily newspapers, but is shocking to anyone who thought there might
still
be some vestiges of justice remaining in our so-called justice system.

Here, for
instance, is what the court had to say on the
question of whether a fair trial is part of the rule of law:“…the framers of the Charter
enshrined that fair trial right only for those “charged
with an offence”.If the rule of law
constitutionally required that all legislation provide for a fair
trial, s. 11(d) and its relatively limited scope
(not to mention its qualification by s.1) would be largely irrelevant
because everyone
would have the unwritten, but constitutional, right to a ‘fair…hearing’
[emphasis in original].”

Get that?Only
criminals have the right to a fair trial in Canada.Civil litigants don’t.

The court went on:“Indeed, tobacco manufacturers sued pursuant to the Act
will receive a
fair civil trial, in the sense that the concept is traditionally
understood:they are entitled to a
public hearing, before an independent and impartial court, in which
they may
contest the claims of the plaintiff and adduce evidence in their
defence.”

Get that?It doesn’t
matter that the defendants are guaranteed to lose.So long as they are allowed to jump through
hoops and give the appearance of defending themselves, they have had
what we
are now calling a fair trial.

There once was a
time when trials with these characteristics
were called “show trials”.Wikipedia,
the online encyclopedia, observes:“The
term show trial describes a type of public trial in which the
judicial
authorities have already determined the guilt of the defendant: the
actual
trial has as its only goal to present the accusation and the verdict to
the
public as an impressive example and as a warning.”

This, I submit, is
a fitting description of the trial we
might eventually see in British
Columbia now that the Supreme Court has given
its
stamp of approval.More likely, however,
the tobacco companies will forego the privilege of a show trial, as
they did in
the U.S.,
and settle with the province for big bucks.

Will the province
spend this money supplying health care to B.C.
smokers? Do pigs fly?According to tobacco companies, the province “already
receives more from tobacco taxes than it incurs in any reasonable
estimate of
the putative health care costs.”Of
course, nobody can accurately estimate the health care costs of
tobacco, since
ill health can have multiple causes.

What we do know,
however, is that B.C.’s American
forerunners have been spending their windfall tobacco money on such
“tobacco-related public health measures” as metal detectors in schools,
museum
expansion, sewer improvements, jails, tax rebates, etc.

The whole affair
is a gigantic farce—mere legalized
extortion—and now it has the sanction of the Supreme Court of Canada.Pathetic.